Volume 24, Issue 3
Volume 24 Number 3 Spring 1997
Private Financing of Criminal Prosecutions and the Differing Protections of Liberty and Equality in the Criminal Justice System. (page 665)
By Joseph E. Kennedy
Government Prosecutors have begun accepting, and in some cases soliciting, voluntary contributions from the private sector in order to finance certain types of criminal prosecutions. Such private financing introduces a new tension between society's interest in punishing the guilty and society's interest in equal treatment by the governement. Private financing of criminal prosecution also raises interesting questions as to whether institutions, as opposed to individuals, can be biased by money.
This Article concludes that private financing in any of its likely forms threatens important equality interests. Part I argues that conflict-of-interest rules provide the only protection for important equality interests implicated by prosecutorial decisions. Part II creates a framework for analyzing institutional bias created by private money and evaluates the conflicts of interest raised by various private financing arangements. Part III evaluates the economic efficiency and victim's rights arguments in favor of private financing and concludes that private financing serves those interests selectively, at best, and inevitably at the expense of important equality interests.
"And the Truth Shall Make You Free": Truth as a First Amendment Defense in Tortious Interference with Contract Cases
By Robert L. Kennedy
This Article traces the development of the tort of tortious interference with contract from its early English Antecedents through the first and second Restatements. The Article discusses the case law that has generally established a "privilege" for the communication of truthful information. This "privilege" was recognized by the American Law Institute in section 772(a) of the Restatement (Second) of Torts.
The Article then considers whether the recognition of a "privilege" for the communication of truthful information is required under the First Amendment to the United States Constitution. It concludes that, under applicable United States Supreme Court precedents, the communication of truthful information is constitutionally protected, regardless of the motive of the actor and regardless of its effects on existing contractual relationships, so long as (1) the information was obtained lawfully, (2) the actor has not expressly or impliedly agreed not to disclose the information, (3) disclosure of the information would not constitute a public disclosure of private facts, and (4) disclosure of the information would not impinge upon some "state interest of the highest order" or, where commercial speech is involved, a "substantial" government interest.
Choosing Federal Judges in the Second Clinton Administration
By Carl Tobias
One of the critical responsibilities which the Constitution entrusts to the president of the United States is the appointment of federal judges. The Chief Executive nominates, and with the advice and consent of the Senate, appoints these officials who enjoy life tenure and must resolve disputes which implicate the basic freedoms of America's inhabitants. President Clinton's careful discharge of this crucial duty may well have yielded the foremost success of his first term in office.
When Governor Clinton was campaigning for the presidency in 1992, he promised to name as judges women and men who would be very intelligent, possess balanced judicial temperament and evince a commitment to protecting individual rights enumerated in the Constitution. The judicial selection record which President Clinton compiled during his initial four years as Chief Executive shows that he has kept his covenant with the American people by appointing federal judges who have these qualifications and who make the bench's composition reflect American society more closely.
This Essay examines judicial selection in the Clinton Administration by initially analyzing how the Chief Executive chose judges during the first four years in office. Finding that his administration articulated clear selections goals and implemented efficacious procedures for appointing members of the federal judiciary, the Essay affords suggestions for naming judges during the second term. If President Clinton expressly enunciates excellent policies, and institutes effective measures for choosing judges, federal judicial selection could be the area in which his administration leaves its greatest legacy.
Book Review
Taking the Ninth Amendment Seriously: A Review of Calvin R. Massey's Silent Rights: The Ninth Amendment and the Constitution's Unenumerated Rights
By N. Stephan Kinsella
This Book Review details and critiques Calvin R. Massey's recent book on the Ninth Amendment. Massey points out that many modern constitutional theorists maintain that the Ninth Amendment can be read as only a rule of construction that prevents construing the Bill of Rights to imply the existence of federal powers beyond those enumerated. Massey argues, however, that it is now "impossible" to achieve the Amendment's original function of limiting the implied powers of the federal government because of the modern expansion of federal powers. Massey suggests that, under a theory of "constitutional cy pres," the original government-limiting purpose of the Ninth Amendment can nevertheless be achieved if it is read as a source of unenumerated rights that can be used to trump legislation. Massey goes on to argue that these unenumerated rights include both natural and positive rights protected in state constitutions.
Mr. Kinsella argues that Massey's theory has little constitutional support, and that this theory would undermine the principle of federalism, itself one of the original purposes of the Constitution. Mr. Kinsella suggests other approaches to constitutional interpretation or reform, such as those suggested by Randy Barnett and Marshall DeRosa.
Note
Tort Reform in the Wake of United States v. Lopez
By Partick Hoopes
This Note discusses the extent to which federal tort reform measures would be constitutionally valid in light of the Supreme Court's decision in United States v. Lopez, which invalidated a federal statute criminalizing guns in schools. The Lopez Court, recognizing that the federal government was one of enumerated powers, held that the Commerce Clause granted Congress the power to regulate only those activities which had a substantial effect on interstate commerce. Specifically, this Note examines the constitutionality of a current proposal to limit punitive damage awards in nearly all tort actions. The heavy financial burden runaway juries impose on the economy at large is more than substantial enough to justify federal pre-emption. This Note surmises that the present Court would permit federal regulation of all but the most local tort lawsuits. Contrary to the expectations of many, Lopez does not signal a revolution in Commerce Clause jurisprudence.
Comment
Mixed Questions and the Scope of Federal Habeas Review: Consideration of Miranda Claims in Thompson v. Keohane
By Rachael Meyers
Federal habeas corpus review has a long historical tradition, at common law and in the United States. Over time, federal habeas review has expanded to its modern dimensions, which permit lower federal courts to overturn decisions of the states' highest courts. When federal courts review claims raised by state prisoners, the mandate to protect individual constitutional rights competes with either fundamental constitutional values: the promotion of federalism, in the form of respect for state court judgments, finality and fairness.
This Comment analyses a federal habeas claim of a Miranda violation, a claim which has traditionally been deemed a "mixed question" of law and fact and therefore subject to de novo review by the lower federal courts. Using the Thompson case as both an example and a point of reference, the Comment discusses the need for reforms to the federal habeas system and the limited impact of the largely procedural reforms implemented in the Antiterrorism and Effective Death Penalty Act of 1996.